The denial of a Defence Assistant to an employee and the violation of principles of natural justice can lead to the direction of a de novo inquiry into the charges.

1. Impugned order of 23rd August, 2016 directs reinstatement of first respondent with consequential benefits. The facts emerging from the impugned order are as under :-

“The facts of the case in brief, as submitted by the Appellant in the appeal, are that he had joined Jhabban lal DAV Sr. Secondary Public School, J-Block, Paschim Vihar, New Delhi-110063 (hereinafter referred to as the Respondent School) in the year 1996 as TGT (Physical Education). In spite of the fact that the Appellant was having vast experience as TGT (Physical Education), he was denied the promotion by the Respondent School, whereas another employee Ms. Savita Sharma who was junior to the Appellant promoted as PGT (Physical Education) in the year 2000. Selection Committee of the Respondent School arbitrarily overlooked the case of the Appellant and gave the undue favour to Ms. Savita Sharma.”

2. First Respondent herein was served with a Memorandum of 21st November, 2011 containing four articles of charge. It is matter of record that first respondent had sought Sudhir Nair, Ex. Senior Vice President of Tata Consultancy Services (TCS) as Defence Assistant. But the Inquiry Officer had refused to appoint him and had called upon first respondent to give a name of a working or a retired employee of DAV Organisation or belonging to State or Central Government as Defence Assistant.

3. First Respondent claims that he had not appointed any Defence Assistant as he did not have access to any such working or retired employee. Although, first respondent had participated in the departmental inquiry but his grievance is that right of representation by Defence Assistant of his choice has been denied to him and so, inquiry proceedings stand vitiated from its inception.

4. The Delhi School Tribunal in the impugned order has held that non-appointment of Sudhir Nair as Defence Assistant of first respondent was not proper. The Delhi School Tribunal (hereinafter to be referred to as 'the Tribunal') has drawn adverse inference against petitioner on account of non-examination of Mr. C.M. Khanna and Mr. Sharma as witnesses to prove the charge of mis-behaviour leveled against first respondent. In respect of the second charge of respondent of not holding arrangement classes/sport classes, the finding returned in the impugned order is that to prove this charge, Smt. Savita Sabharwal alone had been examined and since she was party to framing of the charge sheet and articles of charge, therefore, she must be having natural bias against respondent and so, her evidence cannot be relied upon and thus her evidence before the inquiry officer should be ignored.

5. Regarding the third charge of refusal to receive letter of 22nd February, 2011, the Tribunal has found that no witness has been examined to prove this charge. In respect of the fourth charge of respondent abusing Ms. Neena Kapoor, the Tribunal has held that the evidence of this witness - Ms. Neena Kapoor is contradictory and has not relied upon it.

6. The challenge to impugned order of 23rd August, 2016 (Annexure A-1) by petitioner’s counsel is on the ground that ample opportunity was granted to first respondent to have a Defence Assistant, who is either serving or retired employee of State or Central Government. Reliance is placed upon CCS (CCA) Rules, to submit that in Departmental Inquiry serving or retired employee from Central or State Government is to be appointed as Defence Assistant. Attention of this Court is drawn to Supreme Court’s decision in Crescent Dyes & Chemicals Ltd. Vs. Ram Naresh Tripathi, (1993) 2 SCC 115; S.L. Tagra Vs. New India Assurance Co. Ltd. & Ors. 1998 LLR 327 and Bharat Petroleum Corporation Ltd. Vs. Maharashtra General Kamgar Union and Others, 1999 SCC (L&S) 361 to submit that an employee does not have an absolute right of representation and this aspect is one of the elements of Principles of Natural Justice but a question of prejudice is required to be considered.

7. It is next submitted that first r